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2014 (11) TMI 1127 - HC - Indian LawsMaintainability of Application under Order XXII Rule 10 C.P.C. - Held that:- In the present case, the plaintiff-respondent, admittedly, has transferred his rights during the pendency of appeal. Therefore, it was always open to subsequent transferee to seek leave of the Court to prosecute the matter by moving an application under Order XXII Rule 10 C.P.C. The petitioner has not only filed application under Order 1 Rule 10, but contested it and it is not the case where he ever took the stand that provision was wrongly mentioned by petitioner or his counsel. No such case was pleaded either before the Court below or even before this Court. Under Order 22 Rule 10 CPC, if the petitioner would have filed application, the same was liable to be considered by Court in order to grant leave in its discretion to petitioner, being subsequent transferee lis pendens, to continue proceedings from the stage he has joined, in place of original party who has transferred property to him. In that view of the matter, the petitioner would have been bound by stand taken by transferor/original party. Therefore, the proposition as above in my view has no application. Be that as it may, the discussion made above makes it very clear that petitioner is not without any remedy but what he has been pursuing uptill now, was not in accordance with law. It is always open to petitioner to seek leave of the Court for prosecuting the case by submitting an application under Order 22 Rule 10 CPC which would then be considered by Court concerned in the light of observations made above and in accordance with law, but it cannot be doubted that his application under Order 1 Rule 10 CPC was clearly impermissible and has rightly been rejected by the Court below.
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